Proposal 4: Arguing the pros & cons

MICHIGAN - Come Tuesday, voters will be asked to decide whether to restrict government use of eminent domain in the Michigan Constitution or let current case law define the issue.

Proposal 4, if passed, would amend the state Constitution, prohibiting the government from taking private property by eminent domain for certain private uses.

Eminent domain - the right of the government to take private property for public purposes with just compensation going to the owner - is addressed in the Fifth Amendment of the U.S. Constitution and has been the focus of many court cases, state and nationwide, over the years.

Common examples of eminent domain are government purchases of land for public works projects like airports, railroads, public buildings or parks.

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The recent U.S. Supreme Court case Kelo v. City of New London, however, helped to launch the initiative to place the issue on Tuesday's ballot. The case decision allows seizure of private property for private economic development projects.

Preceding the Kelo case, came a 2004 Michigan Supreme Court decision in County of Wayne v. Hathcock, which virtually eliminated the ability of Michigan and local governments "to use eminent domain for economic development purposes by taking property from one owner to transfer to another private owner," according to a report by the Citizens Research Council of Michigan (CRC).

Also in the report by CRC, a privately funded, not-for-profit public affairs research organization, the legislation in Proposal 4 is looking to "codify" standards laid out in Hathcock and protect property owners in future uses of eminent domain.

CRC findings also indicate over the last few decades the appropriate public uses under eminent domain have expanded, in some cases involving the taking of "private property so that it can be transferred to another private entity for an economic development purpose." The report lists job creation, expansion of the municipal tax base and applications considered "better" than the property was previously used, as stated appropriate public uses in court cases.

Proponents of the amendment argue passage would protect private property rights while discouraging abuse of eminent domain by local units of government and ensuring private property owners are justly compensated. They also argue it prevents properties from being blighted solely to transfer the property to a private entity.

Opponents of such an amendment claim the proposed legislation gives excessive compensation to owners of residential property and limits the government's power in reselling unused or condemned properties for private development.

Brad Garmon, Land Programs Director at the Michigan Environmental Council, released an essay on Proposal 4 in the Michigan Prospect critically analyzing the proposal and addressing potential problems with the legislation. According to a press release from Michigan Prospect regarding the article, Garmon believes "the proposal will create roadblocks to legitimate public enterprises and curtail blight removal and urban redevelopment in Michigan's often distressed core cities." Garmon also argues the proposed legislation adds ambiguity to the Michigan Constitution while creating uncertainty and costs to public benefit projects. He also fears the legislation may impede blight and economic development while increasing taxpayer costs.

In reference to case law like the Hathcock decision, Garmon states in his essay, such law makes Proposal 4 "largely unnecessary," because the restrictions of the proposal would already have been in effect unless new laws are passed.

About Proposal 4

Based on the ballot language the proposed amendment would:

· prohibit the government from taking a private property and transferring it to another private individual or business for purposes of economic development or increasing tax revenue.

· require government to compensate anyone who's principal residence is taken by the government for public use 125 percent of the property's fair market value

· require the government to show the taking of the private property is for public use rather than the property owner.

· requires a higher standard of proof to take the property for public use to eliminate blight.